MAT.APP.(F.C.)/357/2023 of AKHILESH KUMAR GUPTA Vs MS. GUPTA SNIZHANA GRYGORIVNA

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%Judgment reserved on: 13.02.2024Judgment pronounced on: 19.03.2024Judgment pronounced on: 19.03.2024

+MAT.APP.(F.C.) 357/2023 & CM APP. 63060/2023

AKHILESH KUMAR GUPTA..... AppellantThrough:Mr K.P. Mavi, Ms Chitra Gera andMr Dinesh Pratap Singh, Advocates.Through:Mr K.P. Mavi, Ms Chitra Gera andMr Dinesh Pratap Singh, Advocates.

versus

MS. GUPTA SNIZHANA GRYGORIVNA & ORS. ..... RespondentsThrough:Mr Vivek Kohli, Senior Advocatewith Ms Bhavya Bhatia, Mrs NimitaKaul, Mrs Shivambika Sinha and MrGurveer Lally, Advocates for R-1.Mr Kirtiman Singh, CGSC with MrWaizeAliNoor,MsShreyaV.Mehra, Ms Vidhi Jain and Mr KartikaBaijal, Advocates for UOI.Ms Mehak Nakra, ASC (Civil) withMsDishaChoudharyandMrAbhishek Khari, Advocates for R-5.Through:Mr Vivek Kohli, Senior Advocatewith Ms Bhavya Bhatia, Mrs NimitaKaul, Mrs Shivambika Sinha and MrGurveer Lally, Advocates for R-1.Mr Kirtiman Singh, CGSC with MrWaizeAliNoor,MsShreyaV.Mehra, Ms Vidhi Jain and Mr KartikaBaijal, Advocates for UOI.Ms Mehak Nakra, ASC (Civil) withMsDishaChoudharyandMrAbhishek Khari, Advocates for R-5.

CORAM:HON'BLE MR. JUSTICE RAJIV SHAKDHERHON'BLE MR. JUSTICE AMIT BANSAL

[Physical Hearing/Hybrid Hearing (as per request)]AMIT BANSAL, J.:

1.The present appeal has been filed seeking setting aside of thejudgment dated 23[rd]November, 2023 passed by the learned Judge, FamilyCourt, Patiala House Courts, New Delhi (hereinafter referred to as “FamilyCourt”),whereby the guardianship petitionfiled on behalf of theappellant/father (hereinafter referred to as “appellant”) seeking custody of

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the appellant’s son was dismissed.

2.Brief facts giving rise to the present appeal are as under:

2.1.The appellant was married to the respondent no.1 in Vinnytsia City,Ukraine on 18[th]November, 2000. From the said wedlock, two children wereborn; female child on 24[th]November, 2002 and male child on 12[th]February, 2019. Both the children were born in Ukraine and are thus,citizens of Ukraine by birth.

2.2.Subsequently, marital disputes arose between the parties and therespondent no.1 approached the Vinnytsia District Court seeking dissolutionof the marriage. The marriage was dissolved vide Decision dated 6[th]May,2021, passed by the Vinnnytsia District Court, Ukraine.

2.3.The appellant approached the Executive Committee, Vinnytsia CityCouncil, seeking visitation rights in respect of their minor son, which wasallowed vide Decision dated 15[th]July, 2021. In terms of the said Decision,the appellant was granted supervised visitation for period of two months,followed by unsupervised visitation.

2.4.On 24[th]February, 2022, war broke out between Ukraine and Russia.The appellant on 23[rd]March, 2022 took the minor son from Ukraine andreached India on 28[th]March, 2022. The minor child was around three yearsold at that point of time.

2.5.This prompted the respondent no.1 to come to India and approach thisCourt on 27[th]October, 2022 by filing habeas corpus petition, beingW.P.(Crl.) No.2537/2022, praying that the appellant produce the minorchild. Vide order dated 28[th]July, 2023 coordinate bench of this Courttransferred the interim custody of the minor child from the appellant to therespondent no.1, subject to the respondent no.1 surrendering her passport

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and the passport of the minor child with the Station House Officer (SHO),Police Station Vasant Kunj. It was also directed that the minor child shallnot be removed from the jurisdiction of this Court.

2.6.The aforesaid writ petition was disposed of on 20[th]October, 2023,observing that the relief sought for in the said petition, i.e., habeas corpushad already been granted. The Court observed that the issue of interimcustody or visitation rights in respect of the minor child has to be dealt withby the concerned Family Court and granted liberty to the appellant toapproach the appropriate forum. Further, the Court also directed therespondent no.1 to not leave the country for the next three weeks, i.e. till 10[th]November, 2023.

2.7.In view of the aforesaid liberty, the appellant filed guardianshippetition being G.P. No. 58/2023 under Sections 7 and 25 of the Guardiansand Wards Act, 1890 before the Family Court, seeking grant of permanentcustody of the minor child.

2.8.In the said petition, the appellant also sought relief that therespondent no.1 and the minor child be restrained from leaving the country.Vide order dated 7[th]November, 2023, the Family Court directed therespondent no.1 to file her reply in the said petition and posted the matter for17[th]November, 2023. However, the Family Court did not grant ad interimrelief restraining the respondent no.1 from leaving the country along withher minor child.

2.9.The appellant challenged the aforesaid order by filing an appeal,being MAT.APP.(F.C.) No.337/2023 before this Court. The said appeal wasdisposed of by Co-ordinate Bench vide order dated 10[th]November, 2023,by taking on record the submission of the counsel appearing on behalf of the

respondent no.1 that the respondent no.1 shall not seek release of herpassport as well as the passport of the minor child till the next date ofhearing before the Family Court, i.e., 17[th]November, 2023.

2.10. The respondent no.1, on 17[th]November, 2023, filed her writtenstatement to the guardianship petition pending before the Family Court, inwhich, inter alia, she raised the issue of lack of territorial jurisdiction.

2.11. TheFamilyCourtvidetheimpugnedjudgmentdated23[rd]November, 2023 dismissed the guardianship petition by observing thatthe Family Court did not have the territorial jurisdiction.

3.Hence, the present appeal has been filed impugning the aforesaidjudgment dated 23[rd]November, 2023 passed by the Family Court.

4.Notice was issued in the present appeal on 6[th]December, 2023.

5.After the impugned judgment dated 23[rd]November, 2023, passed bythe Family Court, the respondent no.1 moved an application in the disposedof habeas corpus petition [W.P.(Crl.)2537/2022], seeking release of thepassports belonging to herself and her minor child.

6.The Court directed release of the passport of the respondent no.1 andgranted liberty to the respondent no.1 to return to Ukraine vide order dated21[st]December, 2023. However, it was directed that the minor child shall notleave the country without the prior permission of the Court where the appealagainst the judgment dated 23[rd]November, 2023 passed by the Family Courtwas pending, i.e., this Court.

7.Pursuant to the aforesaid direction, the passport of the respondent no.1was returned to her on 22[nd]December, 2023 by the SHO, Police StationVasant Kunj.

8.On 22[nd]December, 2023, the predecessor bench directed the

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concerned authorities to extend the Indian visa of the respondent no.1,noting that it was expiring on 2[nd]January, 2024.

9.When the appeal came up for hearing before this Bench on 3[rd]January, 2024, the respondents no.2 to 4 were directed to file an affidavitwith regard to the situation obtaining in Vinnytsia, Ukraine, in view of theongoing war between Russia and Ukraine. The Indian visa of the respondentno.1 was also directed to be extended for period of six weeks.

10.Pursuant to the aforesaid direction, the Ministry of External Affairs,Union of India, filed an Affidavit dated 25[th]January, 2024 with regard to thesituation in Vinnytsia, Ukraine.

11.On 29[th]January, 2024, the appellant was directed to deposit sum ofRs.1,50,000/- towards litigation expenses with the Registry of this Court.However, the aforesaid sum has not been deposited by the appellant, whoclaimed that he was not in position to make the aforesaid deposit.

12.Mr. K.P. Mavi, learned counsel appearing on behalf of the appellantsubmits that the learned Family Court has commited an error in dismissingthe guardianship petition of the appellant on the ground of lack of territorialjurisdiction without taking into account the best interest of the minor child.It is submitted that even if the minor child has been removed from anothercountry, the courts in India should give paramount importance to the welfareof the child and the order of foreign court would only be one of the factorsto be considered. In this regard, reliance has been placed on the judgment ofthe Supreme Court in Jasmeet Kaur v. Navjot Singh, (2018) 4 SCC 295.

13.It is contended that on account of the war, which broke out betweenRussia and Ukraine in March, 2022, the situation in Ukraine has been graveand it would not be in the best interest of the minor child to be taken back to

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Ukraine and made to live there. Reliance has been placed on various alerts,advisories and news reports to show the devastating effect of the war inUkraine.

14.Per contra, Mr. Vivek Kohli, learned Senior counsel appearing onbehalf of the respondent no.1 submits that the Family Court has correctlyobserved that it did not have territorial jurisdiction in terms of Section 9 ofthe Guardians and Wards Act, 1890 to entertain the petition filed on behalfof the appellant. Reliance in this regard has been placed on the judgments ofthe Supreme Court in Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479and Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311.

15.He further submits that the appellant, who was permant resident ofUkraine and the respondent no.1, citizen of Ukraine got married under theCivil laws of Ukraine. Both the children are citizens of Ukarine by birth.Further, the marriage between the parties was dissolved under the laws ofUkraine. Therefore, Ukraine has the most intimate contact with the partiesand laws of Ukraine would govern the relationship between the parties,including all questions relating to custody and guardianship of the minorchild.

16.It is further submitted that the appellant himself had submitted to thejurisdiction of the competent courts in Ukraine when he approached theVinnytsia City Council, seeking visitation rights to the minor child. Theappellant, in violation of the visitation rights granted to him by the VinnytsiaCity Council, unlawfully removed the minor child from Ukraine and broughthim to India, who at the relevant time was only three years of age.Therefore, the appellant cannot be allowed to take advantage of his ownwrong-doing. In this regard, reliance has been placed on Elizabeth Dinshaw

v. Arvand M. Dinshaw, (1987) 1 SCC 42.

17.It has been stated that despite the on-going war situation in Ukraine,all institutions including hospitals, schools, transportation and other publicutilities are fully functional in Vinnytsia, Ukraine. Reliance in this regardhas been placed on communications issued by various authorities inUkraine, including the Vinnytsia Municipal Council and the Department forCivil Protection.

18.We have heard the learned counsels for the parties and perused thematerial on record.

19.The fulcrum of the challenge of the appellant rests on the issuewhether the Family Court had the jurisdiction to entertain the guardianshippetition.

20.At the outset, reference may be made to Section 9 of the Guardiansand Wards Act, 1890, which is set out below:

“9. Court having jurisdiction to entertain application.—(1) If theapplication is with respect to the guardianship of the person of theminor, it shall be made to the District Court having jurisdiction inthe place where the minor ordinarily resides.

21.The expression ‘where the minor ordinarily resides’ has beeninterpreted by the Supreme Court in Ruchi Majoo (supra), wherein it washeld that the question of territorial jurisdiction is mixed question of factand law. The Supreme Court also noted the difference in the nature ofproceedings in habeas corpus petition and proceedings arising under theGuardians and Wards Act, 1890, insofar as the issue of jurisdiction isconcerned. The proceedings in habeas corpus writ petition are summary innature based on the affidavit of the parties. On the other hand, in

proceedings under the Guardians and Wards Act, 1890, the Court has tomake an enquiry in terms of the statute, summary or detailed as to whetherthe minor ordinarily resides within the jurisdiction of the concerned FamilyCourt. If the Court comes to the conclusion that it does not have thejurisdiction, it cannot pass an order with regard to custody of the minorchild. The relevant extracts are reproduced hereunder:

“24. It is evident from bare reading of the above that the solitarytest for determining the jurisdiction of the court under Section 9 of theAct is the “ordinary residence” of the minor. The expression used is“where the minor ordinarily resides”. Now whether the minor isordinarily residing at given place is primarily question ofintention which in turn is question of fact. It may at best be amixed question of law and fact, but unless the jurisdictional factsare admitted it can never be pure question of law, capable of beinganswered without an enquiry into the factual aspects of thecontroversy.

58. Proceedings in the nature of habeas corpus are summary innature, where the legality of the detention of the alleged detenu isexamined on the basis of affidavits placed by the parties. Even so,nothing prevents the High Court from embarking upon detailedenquiry in cases where the welfare of minor is in question, which isthe paramount consideration for the Court while exercising its parenspatriae jurisdiction. High Court may, therefore, invoke itsextraordinary jurisdiction to determine the validity of the detention, incases that fall within its jurisdiction and may also issue orders as tocustody of the minor depending upon how the Court views the rivalclaims, if any, to such custody.

60. In cases arising out of proceedings under the Guardians andWards Act, the jurisdiction of the court is determined by whether theminor ordinarily resides within the area on which the courtexercises such jurisdiction. There is thus significant differencebetween the jurisdictional facts relevant to the exercise of powers bya writ court on the one hand and court under the Guardians andWards Act on the other.

61. Having said that we must make it clear that no matter court isexercising powers under the Guardians and Wards Act it can chooseto hold summary enquiry into the matter and pass appropriate

orders provided it is otherwise competent to entertain petition forcustody of the minor under Section 9(1) of the Act. This is clear fromthedecisionofthisCourtin DhanwantiJoshi v. MadhavUnde [(1998) 1 SCC 112] , which arose out of proceedings under theGuardians and Wards Act. The following passage is in this regardapposite: (SCC pp. 125-26, para 30)…

62. It does not require much persuasion for us to hold that the issuewhether the court should hold summary or detailed enquiry wouldarise only if the court finds that it has the jurisdiction to entertain thematter. If the answer to the question touching jurisdiction is in thenegative the logical result has to be an order of dismissal of theproceedings or return of the application for presentation before thecourt competent to entertain the same. court that has nojurisdiction to entertain petition for custody cannot pass any orderor issue any direction for the return of the child to the country fromwhere he has been removed, no matter such removal is found to bein violation of an order issued by court in that country. The partyaggrieved by such removal, may seek any other remedy legally opento it. But no redress to such party will be permissible before thecourt which finds that it has no jurisdiction to entertain theproceedings.”

[Emphasis is ours]

22.In the present case, admittedly, the appellant and the respondent no.1were married in Ukraine and subsequently divorced, in accordance with thelaws of Ukraine. Both the children, including the minor child, whosecustody is the subject matter of the present appeal, were born in Ukraine andare citizens thereof.

23.The appellant himself had filed an application before the VinnytsiaCity Council, seeking visitation rights to the minor child. Accordingly, theappellant had submitted to the jurisdiction of the competent courts inUkraine. The Vinnytsia City Council vide its Decision dated 15[th]July, 2021,granted the appellant supervised visitation to the minor child for period oftwo months, followed by unsupervised visitation.

24.In Lahari Sakhamuri (supra), the Supreme Court was seized of

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similar case, wherein the contesting parties were permanent residents of theUnited States of America (US) and had been residing there since longperiod of time. Both the children were born in the US and were US citizens.In the said case, divorce and custody proceedings were initiated in the USand interim orders were passed therein. Despite the interim orders, the wifebrought the children to India and filed petition before the Family Court inHyderabad for custody. The argument of ‘best interest of child’ was raisedon behalf of the wife to invoke jurisdiction of the Family Court. Thehusband filed an application under Order VII Rule 11 of the Code of CivilProcedure, 1908, seeking dismissal of the guardianship petition for want ofterritorial jurisdiction, which was rejected. The High Court allowed theappeal filed by the husband observing that the minor children were notordinary residents of Hyderabad in terms of Section 9(1) of the Guardiansand Wards Act, 1890.

25.In these circumstances, the Supreme Court, taking into account the‘doctrine of comity of courts’, held that the exclusive jurisdiction withregard to the custody of the children would be of the competent courts in theUS as the minor children were US citizens and custody proceedings hadalready been initiated there. The relevant observations are set out below:

“48. It is true that this Court has to keep in mind the best interest ofthe child as the paramount consideration. The observations of the UScourt clearly show that principle of welfare of the children has beentaken into consideration by the US court in passing of the order as itreiterates that both the parties are necessary for proper upbringingofthechildrenandtheultimatedecisionofcustodyandguardianship of the two minor children will be taken by the USwhich has the exclusive jurisdiction to take the decision as thechildren happen to be US citizens and further order has been passedon the respondent’s emergency petition with special release in custodyon 9-3-2018 permitting the respondent (Sobhan Kodali) to apply for

US passports on behalf of the minor children without the appellant(Lahari Sakhamuri) being mother’s consent. The appellant (LahariSakhamuri) cannot disregard the proceedings instituted at herinstance before the US court and she must participate in thoseproceedings by engaging solicitors of her choice to espouse her”cause.

[Emphasis is ours]

26.In our considered view, insofar as the issue of territorial jurisdiction isconcerned, the present case is broadly covered by the judgment of theSupreme Court in Lahari Sakhamuri (supra).

27.In Lahari Sakhamuri (supra), the wife had relied upon the order ofthe Supreme Court in Jasmeet Kaur (supra), which has been relied upon bythe appellant in the present case. However, Jasmeet Kaur (supra) wasdistinguished on the ground that since the minor child therein was born inIndia and the doctrine of ‘best interest of child’ could have been adopted. Inthis regard, relevant observations in Lahari Sakhamuri (supra) are set outbelow:

“32. The judgment relied upon by the learned counsel for theappellant of Jasmeet Kaur case [Jasmeet Kaur v. Navtej Singh, (2018)4 SCC 295 : (2018) 3 SCC (Civ) 71] may not be of any assistance forthe reason that it was case where one of the child was born inIndia which was one of the reason prevailed upon this Court to holdthat principle of comity of courts or principle of forum conveniencecannot determine the threshold bar of jurisdiction and whenparamount consideration is the best interest of the child, it can bethe subject-matter of final determination in proceedings and notunder Order 7 Rule 11 CPC. In our considered view, the applicationfor custody of minor children filed at the instance of the appellant wasrightly rejected by the High Court under the impugned judgment, inconsequence thereof, no legal proceedings in reference to custody ofthe minor children remain pending in India.”

[Emphasis is ours]

28.There is another aspect which weighed with the Family Court inholding that it does not have the territorial jurisdiction. The appellant, in

violation of the Decision passed by the competent authority in Ukraine hadremoved the minor child from Ukraine and brought him to India. Therefore,the Family Court has correctly observed that the presence of the minor childin India was result of an illegal act of the appellant. Merely because theminor child has been living in Vasant Kunj, South-West District, Delhi withhis mother (the respondent no.1), pursuant to custody being handed over toher in the habeas corpus petition vide order dated 28[th]July, 2023, it wouldnot make the minor child an ordinary resident in terms of Section 9 of theGuardians and Wards Act, 1890. The appellant cannot be permitted to takeadvantage of his own wrong. In Elizabeth Dinshaw (supra), the SupremeCourt has observed that parent who illegally removes the child out of acountry should not gain any advantage of his/her wrongdoing.

29.Even on merits, we do not think that it would be in the best interest ofthe minor child, who is currently five years old, to be separated from hismother (respondent no.1) and his elder sister, who are living in Vinnytsia,Ukraine. The Family Court while passing the impugned judgment hadinteracted with the minor child on 17[th]November, 2023, who had expressedhis desire to go back to Ukraine with the respondent no.1 and stated that hedid not wish to speak to the appellant and his family members.

30.Furthermore, it appears that the appellant does not have the financialwherewithal for the upkeep of the minor child. In this regard, it may bementioned that this Court vide Order dated 29[th]January, 2024, had directedthe appellant to deposit Rs.1,50,000/- towards litigation expenses. However,the appellant has expressed his inability to deposit the said amount onaccount of financial distress.

31.Therefore, in our considered view, both emotionally and financially, it

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would not be in the best interest of the minor child to remain in India,separated from his mother and sister.

32.Our view appears to be in line with Article 9(1)[i]and Article 10(2)[ii]ofthe Convention on the Rights of the Child [in short, “CRC”].

32.1. Inter alia, as per Article 9(1), where parents are living separately, adecision has to be made [in this case, by the courts] as to the child’s place ofresidence.

32.2. In consonance with Clause (2) of Article 10, the States parties arerequired to respect the right of the child and his/her parents to leave anycountry, including their own, and to enter their own country.

33.Consistent with the aforementioned articles, we are of the opinion thatthe usual place of residence of the child is Vinnytsia, Ukraine. The child, asnotedhereinabove,seekstoremaininthecompanyoftherespondent/mother. The respondent/mother and the child, who are citizens ofUkraine, wish to return to their country. The appellant has been given rightsof visitation by the concerned Ukrainian authorities.

34.Therefore, in our view, it is in the best interest of the child,notwithstanding the hostilities in other parts of the country, to remain in thecompany of the respondent/mother and his siblings as it provides the child,in the given circumstances, safe environment.

35.With regard to the situation prevailing in Vinnytsia, Ukraine, in theAffidavit filed on behalf of the Ministry of External Affairs, Union of India,though it is stated that the situation in Ukraine remains uncertain andvolatile in the wake of the war between Russia and Ukraine, insofar asVinnytsia is concerned, the Affidavit refers to news report dated 1[st]September, 2023, wherein it is stated that there was one Air Strike in

Vinnytsia sometime back, i.e., on 1[st]September, 2023. Further, as per theadvisories issued by the Indian Embassy in Kyiv in October, 2022, “IndianNationals” have been asked to leave Ukraine. However, these advisorieswould not be applicable to the respondent no.1 and the minor child as bothof them are citizens of Ukraine.

36.Accordingly, taking holistic view of the matter, we are not inclinedto interfere with the impugned judgment. The present appeal is dismissed.Resultantly, the respondent no.1 shall be free to leave India with the minorchild.

37.All pending applications stand disposed of.

AMIT BANSAL(JUDGE)

MARCH 19, 2024

RAJIV SHAKDHER(JUDGE)

i States Parties shall ensure that child shall not be separated from his or her parents against their will,except when competent authorities subject to judicial review determine, in accordance with applicable lawand procedures, that such separation is necessary for the best interests of the child. Such determination maybe necessary in particular case such as one involving abuse or neglect of the child by the parents, or onewhere the parents are living separately and decision must be made as to the child's place of residence.

ii child whose parents reside in different States shall have the right to maintain on regular basis, save inexceptional circumstances personal relations and direct contacts with both parents. Towards that end and inaccordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect theright of the child and his or her parents to leave any country, including their own, and to enter their owncountry. The right to leave any country shall be subject only to such restrictions as are prescribed by lawand which are necessary to protect the national security, public order (ordre public), public health or moralsor the rights and freedoms of others and are consistent with the other rights recognized in the presentConvention.

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